Miscellany. 13.1 This Agreement shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of Washington. In any action or suit to enforce any right or remedy under this Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. 13.2 In the event any provision of this Agreement is rendered null, void or otherwise ineffective, then (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the unenforceable provision and (ii) notwithstanding, and regardless of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision. 13.3 Subject to such rights as Microsoft and/or Inktomi may have under the Agreements, no party hereto shall voluntarily or by operation of law assign, sublicense, transfer, encumber or otherwise dispose of all or any part of its interest in this Agreement without the prior written consent of the non- assigning party. Any attempted assignment, sub-license, transfer, encumbrance or other disposal without such consent shall be void and shall constitute a material default and breach of this Agreement. Subject to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each party and their respective successors and assigns. 13.4 All rights and obligations of the parties hereunder are personal to them. Except as otherwise specifically stated herein, this Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
Appears in 2 contracts
Samples: Software Development Agreement (Inktomi Corp), Software Development Agreement (Inktomi Corp)
Miscellany. 13.1 This Agreement shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of Washington. In any action or suit to enforce any right or remedy under this Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
13.2 In the event any provision of this Agreement is rendered null, void or otherwise ineffective, then (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the unenforceable provision and (ii) notwithstanding, and regardless of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.
13.3 Subject to such rights as Microsoft and/or Inktomi may have under the Agreements, no party hereto shall voluntarily or by operation of law assign, sublicense, transfer, encumber or otherwise dispose of all or any part of its interest in this Agreement without the prior written consent of the non- assigning party. Any attempted assignment, sub-license, transfer, encumbrance or other disposal without such consent shall be void and shall constitute a material default and breach of this Agreement. Subject to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each party and their respective successors and assigns.
13.4 All rights and obligations of the parties hereunder are personal to them. Except as otherwise specifically stated herein, this Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
13.5 Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.
13.6 No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
13.7 This Escrow Agreement (and, as between Inktomi and Microsoft, the Agreements) contains the entire agreement of the parties with respect to the premises, and may not be modified or amended except by a written instrument executed by the party sought to be charged or bound thereby.
13.8 For the purposes of this Agreement, Inktomi and Microsoft hereby designate the following individuals (and such additional individuals or substitutes therefor as may hereafter be designated by written notice from Inktomi or Microsoft, whichever is applicable) as having the authority to provide directions to Escrow Agent hereunder: Inktomi designates: Xxxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx Microsoft designates: ____________________________________________ Executed as of the date first written above. Escrow Agent: DATA BASE, INC. ------------- By:______________________ Data Base, Inc. 000 Xxxxx 000xx Xxxxxx Print Name:______________ Xxxxxxx, XX 00000 Title:___________________ Date:____________________ -7- Inktomi: INKTOMI CORPORATION ------- By:____________________ Inktomi Corporation 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000 Print Name:____________ Xxx Xxxxx, XX 00000 ATTN: General Counsel Title:_________________ Date___________________ Microsoft: MICROSOFT CORPORATION --------- Microsoft Corporation By:____________________ Xxx Xxxxxxxxx Xxx Xxxxxxx, XX 00000-0000 Print Name:____________ ATTN: Law & Corporate Affairs, U.S. Legal Title:_________________ Date:__________________ EXHIBIT A --------- COMPUTER PROGRAMS FOR WHICH CONFIDENTIAL MATERIALS ARE DEPOSITED WITH ESCROW AGENT EXHIBIT B --------- CONFIDENTIALITY AND USE LIMITATION CERTIFICATE STATE OF WASHINGTON ) ) COUNTY OF KING ) The undersigned, being first duly sworn upon oath, does state as follows:
1. The undersigned has certain rights in and to certain computer programs and data, under a Software Development Agreement and Search Results Agreement(the "Agreements") between the undersigned and Inktomi Corporation, a California corporation ("Inktomi").
2. The undersigned has demanded, and expects to receive, source listings and/or other related documentation for such computer programs ("Confidential Materials"). These materials are the confidential and proprietary information of Inktomi, and Inktomi claims protection thereof under applicable of copyright and trade secret law.
3. Upon receipt of the Confidential Materials, the undersigned shall limit the use thereof solely for purposes of installation, operation, maintenance, modification and enhancement of the computer programs. The Confidential Materials, and any copies thereof, shall be used by the undersigned for internal purposes only, and the undersigned shall not make any use of the binary/object codes translated from the Confidential Materials, except as expressly permitted under the Agreements. At all times that the undersigned is entitled to use the Confidential Materials, the undersigned shall continue to pay to Inktomi all royalties and other amounts which Inktomi is entitled to receive under the Agreements.
4. The Confidential Materials shall at all times remain the sole and exclusive property of Inktomi, and the delivery thereof to the undersigned shall not be deemed a grant or transfer of such proprietary interests to the undersigned. The undersigned accepts the Confidential Materials in strict confidence, and shall not make available, provide or otherwise allow or permit the provision, directly or indirectly, of the Confidential Materials, or any part or portion thereof, in any form, representation, or medium, to any person or entity other than the authorized personnel or consultants of the undersigned.
5. The undersigned agrees that Inktomi and DATA BASE, INC. ("Escrow Agent"), a Washington corporation, and any successor thereto or employees or agents thereof, may rely upon this Certificate and the representations made herein for the delivery of the Confidential Materials to the undersigned, and the undersigned agrees to indemnify and hold harmless such persons and entities from and against any and all losses, damages and expenses (including attorneys' fees) arising out of the undersigned's failure to use the Confidential Materials in accordance with this Certificate or the Agreements, or otherwise as a result of any release of any Confidential Materials by Escrow Agent in response to the undersigned's request.
6. Notwithstanding anything to the contrary, this Certificate shall not limit or enlarge the rights or obligations of the parties under the Agreements.
Appears in 2 contracts
Samples: Information Services Agreement (Inktomi Corp), Information Services Agreement (Inktomi Corp)
Miscellany. 13.1 This Agreement shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of Washington. In any action or suit to enforce any right or remedy under this Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
13.2 In the event any provision of this Agreement is rendered null, void or otherwise ineffective, then (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the unenforceable provision and (ii) notwithstanding, and regardless of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.
13.3 Subject to such rights as Microsoft and/or Inktomi may have under the Agreements, no party hereto shall voluntarily or by operation of law assign, sublicense, transfer, encumber or otherwise dispose of all or any part of its interest in this Agreement without the prior written consent of the non- assigning party. Any attempted assignment, sub-license, transfer, encumbrance or other disposal without such consent shall be void and shall constitute a material default and breach of this Agreement. Subject to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each party and their respective successors and assigns.
13.4 All rights and obligations of the parties hereunder are personal to them. Except as otherwise specifically stated herein, this Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
13.5 Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.
13.6 No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
13.7 This Escrow Agreement (and, as between Inktomi and Microsoft, the Agreements) contains the entire agreement of the parties with respect to the premises, and may not be modified or amended except by a written instrument executed by the party sought to be charged or bound thereby.
13.8 For the purposes of this Agreement, Inktomi and Microsoft hereby designate the following individuals (and such additional individuals or substitutes therefor as may hereafter be designated by written notice from Inktomi or Microsoft, whichever is applicable) as having the authority to provide directions to Escrow Agent hereunder: Inktomi designates: Xxxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx Microsoft designates: ____________________________________________ Executed as of the date first written above. Escrow Agent: DATA BASE, INC. ------------ /s/ Xxxxx Xxxx By:________________________________ Data Base, Inc. Xxxxx Xxxx 000 Xxxxx 000/xx/ Xxxxxx Print Name:________________________ Xxxxxxx, XX 00000 Escrow Services Title:_____________________________ July 29, 1997 Date:______________________________ -7- INKTOMI CORPORATION Inktomi: /s/ Xxxxx X. Xxxxxxxxxxxx ------- By:______________________________ Xxxxx X. Xxxxxxxxxxxx Inktomi Corporation Print Name:______________________ 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000 XXX Xxx Xxxxx, XX 00000 Title:___________________________ ATTN: General Counsel July 24, 1997 Date:____________________________ MICROSOFT CORPORATION Microsoft: /s/ Xxxxx Xxxxxxxx ---------- By:______________________________ Xxxxx Xxxxxxxx Microsoft Corporation Print Name:______________________ One Microsoft Way Vice President Xxxxxxx, XX 00000-0000 Title:___________________________ ATTN: Law & Corporate Affairs, U.S. Legal July 27, 1997 Date:____________________________ -8- EXHIBIT A --------- COMPUTER PROGRAMS FOR WHICH CONFIDENTIAL MATERIALS ARE DEPOSITED WITH ESCROW AGENT [*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. -9- Search Engine: ------------- [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] Crawler: ------- [*] [*] Indexer: ------- [*] [*] [*] [*] [*] [*] [*] [*] Utilities: --------- [*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. EXHIBIT B --------- CONFIDENTIALITY AND USE LIMITATION CERTIFICATE STATE OF WASHINGTON ) ) COUNTY OF KING ) The undersigned, being first duly sworn upon oath, does state as follows:
1. The undersigned has certain rights in and to certain computer programs and data, under a Software Development Agreement and Search Results Agreement (the "Agreements") between the undersigned and Inktomi Corporation, a California corporation ("Inktomi").
2. The undersigned has demanded, and expects to receive, source listings and/or other related documentation for such computer programs ("Confidential Materials"). These materials are the confidential and proprietary information of Inktomi, and Inktomi claims protection thereof under applicable of copyright and trade secret law.
3. Upon receipt of the Confidential Materials, the undersigned shall limit the use thereof solely for purposes of installation, operation, maintenance, modification and enhancement of the computer programs. The Confidential Materials, and any copies thereof, shall be used by the undersigned for internal purposes only, and the undersigned shall not make any use of the binary/object codes translated from the Confidential Materials, except as expressly permitted under the Agreements. At all times that the undersigned is entitled to use the Confidential Materials, the undersigned shall continue to pay to Inktomi all royalties and other amounts which Inktomi is entitled to receive under the Agreements.
4. The Confidential Materials shall at all times remain the sole and exclusive property of Inktomi, and the delivery thereof to the undersigned shall not be deemed a grant or transfer of such proprietary interests to the undersigned. The undersigned accepts the Confidential Materials in strict confidence, and shall not make available, provide or otherwise allow or permit the provision, directly or indirectly, of the Confidential Materials, or any part or portion thereof, in any form, representation, or medium, to any person or entity other than the authorized personnel or consultants of the undersigned.
5. The undersigned agrees that Inktomi and DATA BASE, INC. ("Escrow Agent"), a Washington corporation, and any successor thereto or employees or agents thereof, may rely upon this Certificate and the representations made herein for the delivery of the Confidential Materials to the undersigned, and the undersigned agrees to indemnify and hold harmless such persons and entities from and against any and all losses, damages and expenses (including attorneys' fees) arising out of the undersigned's failure to use the Confidential Materials in accordance with this Certificate or the Agreements, or otherwise as a result of any release of any Confidential Materials by Escrow Agent in response to the undersigned's request.
6. Notwithstanding anything to the contrary, this Certificate shall not limit or enlarge the rights or obligations of the parties under the Agreements.
Appears in 1 contract
Samples: Escrow Agreement (Inktomi Corp)
Miscellany. 13.1 (a) This Agreement contains the entire agreement between the parties respecting the matters herein set forth and supersedes all prior agreements, whether written or oral, between the parties respecting such matters. Any amendments or modifications hereto, in order to be effective, shall be construed, enforced, performed in writing and in all respects governed executed by and in accordance with the laws in the State of Washingtonparties hereto. In any action or suit to enforce any right or remedy under this Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
13.2 In the event A determination that any provision of this Agreement is rendered null, void unenforceable or otherwise ineffective, then (i) invalid shall not affect the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent enforceability or validity of the unenforceable provision and (ii) notwithstandingany other provision, and regardless any determination that the application of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No Agreement to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision of this as it may apply to any other persons or circumstances.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES.
(c) This Agreement shall be interpreted against bind Indemnitor and its personal representatives, successors and assigns and shall inure to the benefit of Venoco, its officers, directors, shareholders (other than Indemnitor), agents and employees of Venoco and their respective heirs, personal representatives, successors and assigns. Notwithstanding the foregoing, Indemnitor shall not assign any party because such party or its legal representative drafted such provision.
13.3 Subject to such rights as Microsoft and/or Inktomi may have under the Agreements, no party hereto shall voluntarily or by operation of law assign, sublicense, transfer, encumber or otherwise dispose of all or any part of its interest in rights or obligations under this Agreement without the prior written consent of the non- assigning party. Any attempted assignmentVenoco, sub-licensewhich consent may be withheld by Venoco in its sole discretion.
(d) The failure of any party hereto to enforce any right or remedy hereunder, transferor to promptly enforce any such right or remedy, encumbrance or other disposal without such consent shall be void and shall not constitute a material default and breach of this Agreement. Subject waiver thereof nor give rise to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each any estoppel against such party and their respective successors and assigns.
13.4 All rights and obligations nor excuse any of the parties hereunder are personal hereto from their respective obligations hereunder. Any waiver of such right or remedy must be in writing and signed by the party to them. Except as otherwise specifically stated herein, this be bound.
(e) This Agreement is not intended subject to benefitenforcement at law or in equity, nor including actions for damages or specific performance.
(f) Time is of the essence hereof.
(g) The term "business day" as used herein shall it mean a weekday, Monday through Friday, except a legal holiday or a day on which banking institutions in New York, New York are authorized by law to be deemed to give rise to, any rights in any third partyclosed.
Appears in 1 contract
Miscellany. 13.1 (i) This Agreement contains the entire agreement between the parties respecting the matters herein set forth and supersedes (except as to the Mortgage) all prior agreements, whether written or oral, between the parties respecting such matters. Any amendments or modifications hereto, in order to be effective, shall be construed, enforced, performed in writing and in all respects governed executed by and in accordance with the laws in the State of Washingtonparties hereto. In any action or suit to enforce any right or remedy under this Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
13.2 In the event A determination that any provision of this Agreement is rendered null, void unenforceable or otherwise ineffective, then (i) invalid shall not affect the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent enforceability or validity of the unenforceable provision and (ii) notwithstandingany other provision, and regardless any determination that the application of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No Agreement to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision of this as it may apply to any other persons or circumstances.
(ii) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED WITHOUT REGARD TO ITS CONFLICTS OF LAWS RULES.
(iii) This Agreement shall be interpreted against bind each Indemnitor and the its personal representatives, successors and assigns and shall inure to the benefit of Lender, its officers, directors, shareholders, agents and employees of Lender and their respective heirs, personal representatives, successors and assigns. Notwithstanding the foregoing, Indemnitor shall not assign any party because such party or its legal representative drafted such provision.
13.3 Subject to such rights as Microsoft and/or Inktomi may have under the Agreements, no party hereto shall voluntarily or by operation of law assign, sublicense, transfer, encumber or otherwise dispose of all or any part of its interest in rights or obligations under this Agreement without the prior written consent of the non- assigning party. Any attempted assignmentLender, sub-licensewhich consent may be withheld by Lender in its sole discretion.
(iv) The failure of any party hereto to enforce any right or remedy hereunder, transferor to promptly enforce any such right or remedy, encumbrance or other disposal without such consent shall be void and shall not constitute a material default and breach of this Agreement. Subject waiver thereof nor give rise to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each any estoppel against such party and their respective successors and assigns.
13.4 All rights and obligations nor excuse any of the parties hereunder are personal hereto from their respective obligations hereunder. Any waiver Of such right or remedy must be in writing and signed by the party to them. Except as otherwise specifically stated herein, this be bound.
(v) This Agreement is not intended subject to benefitenforcement at law or in equity, nor shall it be deemed to give rise to, any rights in any third partyincluding actions for damages or specific performance.
(vi) Time is of the essence hereof
Appears in 1 contract
